J-S29004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAIVON JANAYE LUSTER,
Appellant No. 195 WDA 2015
Appeal from the Judgment of Sentence Entered December 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012910-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 19, 2016
Appellant, Taivon Janaye Luster, appeals from the judgment of
sentence of 11½-23 months’ incarceration and a consecutive term of two
years’ probation, imposed following her convictions for cruelty to animals,
simple assault, possession of marijuana, criminal mischief, and disorderly
conduct. Appellant challenges the sufficiency of the evidence sustaining her
conviction for simple assault. She also contends that the trial court’s
exclusion of certain evidence constituted an abuse of discretion. After
careful review, we affirm.
The trial court summarized the evidence adduced at trial as follows:
On August 31, 2013, at approximately 12:30 p.m.,
Rosalyn Reed was watering her outdoor plants and retrieving her
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*
Former Justice specially assigned to the Superior Court.
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mail when her neighbor, [Appellant], appeared outside and
began shouting at her. [Appellant] was screaming obscenities
and was repeatedly threatening Ms. Reed. Ms. Reed ignored
[Appellant] at first and continued to water her plants, but
[Appellant] then told Ms. Reed that she was going to “fix her,”
and she reemerged with a “bucket of eggs” and an object that
resembled a two-by-four. [Appellant] threw at least a dozen
eggs at Ms. Reed’s 2006 black Chevy Blazer, the eggs hitting the
roof, front grille, hood, and windshield of the car, causing
damage to the vehicle.
After she was finished throwing the eggs, [Appellant]
picked up the two-by-four object and began threatening to hit
Ms. Reed. With the two-by-four in her hand, [Appellant] stated
“I got something for you,” and “I’ll fix you.” As [Appellant] was
threatening Ms. Reed, she was also walking towards Ms. Reed’s
vehicle and towards the front of Ms. Reed’s hedges. Ms. Reed
was “terrified,” “shocked” and “scared,” and she did not respond
to [Appellant]. Although Ms. Reed was on her porch at this
point, her 22[-]pound, ten-year old Miniature American Eskimo
named Sake was tied up in her front yard, sitting directly behind
the hedges.
Accordingly to Ms. Reed, [Appellant] could not get to her
on the porch, so she went after her dog instead. [Appellant]
moved toward Sake, found a gap in the hedges, reached over,
and delivered a powerful blow to the dog’s head with the wooden
two-by-four object, swinging it like a baseball bat. Sake fell
upon impact and immediately began to seize and spasm.
[Appellant] ran back into her home with the wooden object, and
Ms. Reed called the police. She also took photographs of Sake’s
injuries. Upon their arrival, the police officers immediately
recognized that Sake had suffered “extensive injuries,” and they
encouraged Ms. Reed to seek medical treatment for Sake as
soon as she finished accounting the details of the incident to the
officers.
When the police officers went to [Appellant]’s home to
obtain her version of events, [Appellant] came out of her
residence, took a seat in a chair on her porch, and began to
speak with them without any prompting. She confirmed that
there had been an ongoing dispute between her and Ms. Reed
and she admitted that she had hit Sake, Ms. Reed’s dog.
However, she claimed that she had used a purse or a bag
instead of a hard wooden object. After [Appellant] denied to the
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police that she had a two-by-four or similar object in her
residence, she stood up, gestured towards her front door, and
indicated to the officers that they could “go ahead and check.”
She moved towards the door and entered her residence
alongside the officers.
Once inside of the home, the officers encountered another
woman and two (2) small children between the ages of one and
two years old. As they were searching for the object that was
used to hit Sake, the officers observe, in plain view, a marijuana
blunt, pipes, and two loaded firearms sitting next to each other
on top of [Appellant]’s dresser in her bedroom. Neither weapon
had its mechanical safety engaged. One firearm was registered
to [Appellant]’s fiancé, but the other was unregistered. The
officers never found an object resembling a two-by-four in the
home, and [Appellant] was arrested shortly after the officers
completed the background check on the firearms.
As a result of [Appellant]’s actions, Sake suffered severe
head trauma, from which the veterinarians originally believed he
would not survive. Against all odds, the dog survived, but is
now substantially visually impaired following this incident. The
dog continues to suffer from seizures and anxiety issues, which
require permanent treatment and medications.
Trial Court Opinion (TCO), 7/29/15, at 4-7 (citations omitted).
On August 31, 2013, Appellant was charged by criminal information
with the following ten counts: (1) endangering the welfare of children, 18
Pa.C.S. § 4304(a)(1); (2) endangering the welfare of children, 18 Pa.C.S. §
4304(a)(1); (3) person not to possess/use firearms, 18 Pa.C.S. §
6105(c)(7); (4) person not to possess/use firearms, 18 Pa.C.S. §
6105(c)(7); (5) cruelty to animals, 18 Pa.C.S. § 5511(a)(2.1)(i)(A); (6)
simple assault, 18 Pa.C.S. § 2701(a)(3); (7) possession of marijuana, 35
P.S. § 780-113(a)(31); (8) possession of drug paraphernalia, 35 P.S. § 780-
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113(a)(32); (9) criminal mischief, 18 Pa.C.S. § 3304(a)(1); and (10)
disorderly conduct, 18 Pa.C.S. § 5503(a)(1).
Prior to trial, Appellant litigated an unsuccessful suppression motion,
and counts 3 and 4 (the firearms charges) were severed from the criminal
information at the Commonwealth’s request. A jury trial was held regarding
counts 1, 2, 5, 6, and 8. The jury found Appellant guilty of counts 5 and 6
(animal cruelty and simple assault), and not guilty of counts 1, 2, and 8.
Immediately following the jury trial, Appellant proceeded to a bench trial on
the remaining non-firearm counts, 7, 9, and 10 (possession of marijuana,
criminal mischief, and disorderly conduct). The trial court found Appellant
guilty of each of those charges. Ultimately, the Commonwealth nolle
prossed both firearms charges. On December 14, 2014, the trial court
sentenced Appellant to 11½-23 months’ incarceration at count 5 (cruelty to
animals), and a consecutive term of two years’ probation at count 6 (simple
assault). Pursuant to these offenses, Appellant was ordered to pay a
$1000.00 fine and court costs. No further penalties were assessed at the
remaining counts.
Appellant filed a timely post-sentence motion. Following a hearing
addressing that motion on January 8, 2015, the trial court reduced
Appellant’s fine by $500.00. Appellant filed a timely notice of appeal, and a
timely, court-ordered Pa.R.A.P. 1925(b) statement on April 30, 2015. The
trial court issued its Rule 1925(a) opinion on July 29, 2015. Appellant now
presents the following questions for our review:
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I. DID THE TRIAL COURT ABUSE ITS DISCRETION BY LIMITING
TESTIMONY REGARDING THE LONG-STANDING DISPUTE
BETWEEN [APPELLANT] AND REED, WHICH WAS RELEVANT TO
UNDERMINE REED’S CREDIBILITY AND ESTABLISH THE NATURE
OF THE DISPUTE?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION IN
EXCLUDING DEFENSE PHOTOGRAPHS OF REED’S DOG OFF ITS
LEASH, AS THE PHOTOGRAPHS WERE RELEVANT TO THE
CREDIBILITY OF REED’S TESTIMONY AND THE NATURE OF THE
LONG-STANDING DISPUTE BETWEEN REED AND [APPELLANT]?
III. WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN
[APPELLANT]’S CONVICTION AT COUNT 6, SIMPLE ASSAULT, AS
THE COMMONWEALTH FAILED TO PROVE, BEYOND A
REASONABLE DOUBT, THAT [APPELLANT] USED PHYSICAL
MENACE OR THAT SHE PLACED REED IN FEAR OF IMMINENT
SERIOUS BODILY INJURY?
Appellant’s Brief, at 5.
Appellant’s first two claims concern the trial court’s exclusion of certain
evidence.
It is well established in this Commonwealth that the decision to
admit or to exclude evidence lies within the sound discretion of
the trial court. Moreover, our standard of review is very narrow;
we may only reverse upon a showing that the trial court clearly
abused its discretion or committed an error of law. To constitute
reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Commonwealth v. Robertson, 874 A.2d 1200, 1209 (Pa. Super. 2005)
(quotation marks omitted).
Furthermore, “[a]ll relevant evidence is admissible, except as
otherwise provided by law. Evidence that is not relevant is not admissible.”
Pa.R.E. 402. Evidence is relevant if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence;” and “(b) the
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fact is of consequence in determining the action.” Pa.R.E. 401. The
comment to Rule 401 also directs that: “Whether evidence has a tendency to
make a given fact more or less probable is to be determined by the court in
the light of reason, experience, scientific principles and the other testimony
offered in the case.” Pa.R.E. 401 (comment). “The court may exclude
relevant evidence if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Pa.R.E. 403.
Appellant’s first claim concerns the ostensible exclusion of testimonial
evidence concerning the ongoing dispute between Appellant and Reed, which
predated the incident in question. Appellant contends that this ongoing
dispute “was highly probative of [Reed’s] bias and, as a result, the credibility
of her testimony.” Appellant’s Brief, at 17. The Commonwealth argues,
however, that this claim is meritless because
it is not at all clear that any specific evidence that [A]ppellant
sought to present to the jury was precluded by the trial court,
and if that is the case, [A]ppellant’s claim fails on its face.
Secondly, to the extent that [A]ppellant is claiming that the
evidence was relevant to attack Reed’s credibility, that claim is
waived because [A]ppellant never offered that argument to the
trial court as a basis for the evidence’s admission.
Commonwealth’s Brief, at 13. After a careful review of the record, we agree
with the Commonwealth that Appellant has failed to specifically identify what
evidence was excluded erroneously, testimonial or otherwise, regarding prior
disputes between Appellant and Reed.
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Prior to trial, the Commonwealth filed a motion in limine seeking to
exclude evidence of prior disputes, claiming that the scope of admissible
evidence should be limited to the events of August 31, 2013. Defense
counsel opposed the motion as premature, arguing that his trial strategy
would be dependent on the nature of the Commonwealth’s evidence. N.T.,
7/15/14, at 5. Defense counsel stated that he would likely need to delve
into their prior disputes to some degree in order to establish that Appellant
had a reasonable fear of Sake. Id. at 5-6. Consequently, defense counsel
asked the trial court to “hold off on ruling on this particular motion until we
see how this evidence comes in ….” Id. at 6.
The trial court did not exclude any specific evidence in response to the
motion in limine; instead, it appears to have merely cautioned defense
counsel that the scope of permissible prior-dispute evidence would be
narrow:
The Court [addressing defense counsel]: You can have some
leeway in discussing prior incidents, but I don’t want a detailed
discussion. You can talk about the fact there is a prior history.
You can give a little bit about what that is, but we’re not going
back three years and we are not going back to every single
incident that occurred.
I’ll give you some leeway on it, but we’re not turning this
into a neighbor fight. This is about this particular incident on
this particular day. Understood[?]
[Defense Counsel]: Yes.
[Prosecutor]: Yes.
Id. at 11.
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Appellant cites to several parts of the record where this matter came
up again through the Commonwealth’s objection to a question or line of
inquiry pursued by defense counsel. However, in each instance, the record
does not show that the court excluded any particular evidence. When
defense counsel attempted to ask Reed if Appellant complained to her in the
past about parking in front of their houses, the Commonwealth objected.
Despite the trial court’s statement that “[w]e’re not getting into every
dispute[,]” Reed immediately thereafter answered the question by denying
any such disputes existed.1 Id. at 19.
Later, defense counsel asked Ms. Reed if she had ever “complained to
the police that [[Appellant] and her family] have attached wires to [her]
house to spy on [her]?” Id. at 125. The Commonwealth objected, and
the trial court asked defense counsel for his response to the objection.
Before any more was said, including any ruling by the court, Reed stated
that she had only complained about garbage in the past. However, defense
counsel was permitted to follow up extensively on Reed’s answer. Id. at
124-26.
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1
Appellant argues that defense counsel was not permitted to ask follow up
questions due to the trial court’s ruling immediately preceding Reed’s
answer. The record does not reflect this; no effort was made by defense
counsel to make the court aware that Reed’s statement was impeachable,
and Appellant does not identify what evidence could have been used for that
purpose. Moreover, defense counsel did not ask the trial court to instruct
the jury to disregard Reed’s statement.
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These are the only portions of the record identified by Appellant as
demonstrating the exclusion of prior-dispute evidence. However, we agree
with the Commonwealth that it is not apparent from the record what
evidence was excluded, and Appellant fails to show otherwise. Thus, we
conclude that Appellant’s claim is meritless in this regard. Appellant does
argue that certain police reports could have been admitted to rebut some of
Reed’s answers; however, Appellant does not identify where such evidence
was actually offered by defense counsel and rejected by the trial court.
Accordingly, this aspect of Appellant’s claim is waived. See Pa.R.A.P. 302
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). Accordingly, we conclude that the trial court did
not abuse its discretion by purportedly excluding evidence pertaining to prior
disputes between Appellant and Reed.
Next, Appellant complains that the trial court abused its discretion
when it excluded photographic evidence. Defense counsel attempted to
admit, during Appellant’s testimony, three photographs (Defense Exhibits E,
F, and G) taken by Appellant, which purportedly depicted Sake off its leash.
N.T., 7/15/14, at 188-189. Appellant admitted that the photographs were
taken a year after the incident which gave rise to the charges in this case.
Id. at 189. The Commonwealth objected to the relevance of the photos,
and that objection was sustained by the trial court. Id.
Appellant now contends that this evidence was relevant because:
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[I]t made it less probable that Reed was telling the truth when
she testified on direct examination that there was no ongoing
dispute between her and [Appellant] regarding her dog. The
ongoing dispute was … relevant to show the existence of
animosity between the two women, which may have affected the
veracity [of] Reed’s testimony. Reed had specifically testified on
cross-examination that there was no dispute of this nature
because her dog was always under her control, rather than on
[Appellant]’s property. By showing that Reed’s dog was not, in
fact, always “close by” her, the photographs would have cast
doubt on Reed’s claims that [Appellant] had never complained to
her about the dog. … [P]roof of prior animosity between
[Appellant] and Reed is relevant to establish Reed’s bias and,
accordingly, her motive to lie and/or embellish her testimony.
Appellant’s Brief, at 30-31 (citations to the record omitted).
The trial court “sustained the [Commonwealth’s] objection to [the
admission of Defense Exhibits E, F, and G] because it agreed that the
photographs were not taken during any relevant time frame.” TCO, at 11.
We agree with the trial court’s basis for not admitting this evidence. As
Appellant readily admits, she sought admission of these photographs in
order to attack Reed’s credibility, in the most general sense, by attacking
her assertion that her dog was always under control: however, the
photographs did not shed any light on the crimes for which Appellant was
charged. Appellant does not even argue that the photographs demonstrate
that Appellant was fearful of the 22-pound dog, ostensibly because the
photos did not demonstrate any aggressive behavior on the dog’s part.
Moreover, the temporal discord between the incident and the photographs
significantly diminished any nominal relevance such photographs could
provide to Appellant’s state of mind a year prior. Thus, we conclude that the
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trial court did not abuse its discretion when it excluded Defense Exhibits E,
F, and G.
Finally, Appellant argues the evidence was insufficient to convict her of
simple assault. As is pertinent to Appellant’s conviction in this case, a
person commits a simple assault if he or she “attempts by physical menace
to put another in fear of imminent serious bodily injury[.]” 18 Pa.C.S. §
2701(a)(3). Appellant avers that the Commonwealth failed to prove that
she used “physical menace,” or otherwise put Reed in “fear of imminent
serious bodily injury.” Id.
Our standard of review for sufficiency claims is well-established:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Appellant argues that:
[T]he only evidence which the Commonwealth offered to support
[Appellant]’s conviction under § 2701(a)(3) was the testimony
that [she] made verbal threats, threw eggs at Reed’s car, struck
Reed’s dog with a 2-by-4, and immediately ran back to her
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house. Under Pennsylvania law, this evidence is not sufficient to
establish simple assault by physical menace.
Appellant’s Brief, at 35.
The trial court relied on the following facts in rejecting Appellant’s
sufficiency claim:
[Appellant] repeatedly threatened Ms. Reed and told her that
she was going to “fix her” and that she “had something for” her
as she walked from her residence to the front of Ms. Reed’s
hedges. [Appellant] was screaming obscenities and throwing
eggs at her vehicle, and [Appellant] threatened to hit Ms. Reed
as she was holding a 2-by-4 object in her hands. Ms. Reed
testified that she was “scared,” “terrified” and “shocked” at
[Appellant]’s behavior. Commonwealth witness Eugene Ziegler
substantially corroborated Ms. Reed’s account of the incident, as
he saw [Appellant] throwing eggs at a vehicle, as well as
[Appellant] holding a “big stick.” Mr. Ziegler also testified that
Ms. Reed looked scared during the incident.
TCO, at 22-23.
Appellant emphasizes that her threats were verbal, not physical in
nature, as she never came within striking distance of Reed. Even still,
Appellant argues, “physically threatening behavior is not enough to satisfy
the requirements of § 2701(a)(3). Specifically, the statute requires that the
defendant’s behavior be calculated to cause fear of ‘imminent’ serious bodily
injury.” Appellant’s Brief, at 36. Thus, Appellant contends that if the feared
serious bodily injury is not imminent, the actions provoking that fear do not
constitute a simple assault under subsection (a)(3).
Appellant relies Commonwealth v. Fry, 491 A.2d 843 (Pa. Super.
1985), in support of her claim. In Fry, the appellant was convicted under
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the same provision of the simple assault statute as is at issue here under the
following facts:
On March 11, 1983, a ten year old female child was walking to
school with a younger brother and two friends. When she
reached the school grounds, Eric Fry, age eighteen, approached
her from behind, grabbed her by putting his arms around her
and lifted her off the ground. When she started to kick and
scream, Fry said, “shut up, you're coming with me.” The child
had not been acquainted previously with Fry. Two children who
were serving as safety patrol members saw what was happening
and ran toward Fry; whereupon, he put the child down and
walked away. At trial, the child surmised that Fry intended to
pull her toward a flight of stairs leading to a locker room, but she
conceded that she wasn't certain about that.
Id. at 844.
Addressing Fry’s sufficiency claim challenging whether he intended to
put the victim in fear of imminent serious bodily injury, we noted that
“[p]roof of a person's state of mind may be found from his words or conduct
or from the surrounding circumstances. Intent may be shown by
circumstantial evidence. A fact finder may find that a person intends the
natural and probable consequences of his actions.” Id. at 845 (citations
omitted). Nevertheless, this Court reversed Fry’s conviction for simple
assault, reasoning:
[T]he only evidence of physical menace was that Fry put his
arms around the child and picked her up. He did not strike or
attempt to subdue her by physical means. He did not threaten
to inflict bodily injury upon her. There was no evidence that
serious bodily injury was imminent or that [Fry] intended to put
the child in fear thereof. Cf. Commonwealth v. Alexander,
477 Pa. 190, 383 A.2d 887 (1978) (blow to nose not serious
bodily injury); In the Interest of J.L., [475 A.2d 156 (1984)]
(pushing two year old child away with elbow insufficient to show
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intent to cause bodily injury); Commonwealth v. Ostolaza,
267 Pa.Super. 451, 406 A.2d 1128 (1979) (physically wrestling
wallet from victim insufficient to show intent to put victim in fear
of serious bodily injury).
The evidence did show that [Fry] told the child to “shut up”
and that he was taking her with him. The child speculated that
perhaps [Fry] intended to take her toward the steps leading to
the locker room. Certainly one can infer from this that a young
child would be alarmed and frightened by [Fry]'s conduct.
However, that is not the conduct which was made criminal by 18
Pa.C.S. § 2701(a)(3). The statute required a specific intent on
the part of [Fry] to put the child in fear of imminent serious
bodily injury. This the Commonwealth failed to prove. There
was no evidence from which it could be inferred that [Fry], by
his conduct, intended to put the child in fear of imminent,
serious bodily injury. The intent with which [Fry] acted has not
been shown by the evidence, and it would be inappropriate for
us to indulge in speculation with respect thereto.
Fry, 491 A.2d at 845.
We find the instant case easily distinguishable from Fry. The evidence
here, taken in a light most favorable to the Commonwealth, established that
Appellant was wielding a two-by-four (effectively a club) while threatening
that she was going to “fix” Reed and that she “had something for” her.2
Those threats were aggravated by Appellant’s contemporaneous use of that
weapon on Ms. Reed’s leashed dog. Moreover, Reed testified that she was
terrified of Appellant in that moment, and it is reasonable to believe that a
two-by-four could inflict serious bodily injury. By contrast, in Fry, there was
no weapon involved, no threats of physical violence, no brutal attack on a
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2
Taken in a light most favorable to the Commonwealth, these statements
could reasonably be interpreted as threats of physical violence.
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domestic animal, and no evidence of the victim’s fear of serious bodily
injury. Thus, Fry is inapposite.
In support of her claim, Appellant also distinguishes her case from that
of Commonwealth v. Hudgens, 582 A.2d 1352 (Pa. Super. 1990), where
this Court affirmed a conviction pursuant to 18 Pa.C.S. § 2701(a)(3), under
the following facts:
On April 26, 1989, appellant, Dennis Hudgens, and some friends
visited the Space Station Video Game Arcade located near the
intersection of Campbell and West Edwin Streets in Williamsport,
Pennsylvania. One of the members in Hudgens' group was Joey
Lebert, who was approximately thirteen years of age at this
time. Lebert was dressed in a Ninja-type of costume on this
occasion. A group of teenagers, who were approximately fifteen
to eighteen years of age, were also present in the arcade. Some
of the teenagers began to tease and harass Lebert with regard to
his Ninja costume. As a result, Lebert left the arcade. The
teenagers followed Lebert outside the arcade and continued their
teasing. Lebert then observed the teens moving closer to him
and he began to fear for his safety. In order to avoid a
confrontation with the group, Lebert ran into a nearby alley.
[Hudgens] subsequently became aware of the difficulties
which Lebert encountered with the group of teens.
Consequently, he exited the arcade and asked one member of
the group, Clyde Swope, whether he was responsible for
harassing or teasing Lebert. Swope denied making any
comments to the boy. Hudgens disbelieved Swope and
continued to exchange words with him. A heated argument
ensued, during which Hudgens informed Swope that he was
going to get him. In support of his threat, Hudgens then
removed a sword which was concealed in his trousers. The
sword resembled the type of weapon used by Samurai or Ninja
warriors. Hudgens menaced Swope with the sword by holding it
within five to six inches of Swope's body and by touching
Swope's hand with the sword. Upon seeing the sword, Swope
became frightened and attempted to back away from Hudgens.
One of Swope's friends, Shalamar/Casper Brown, then entered
the melee in order to protect Swope from possible harm. At this
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point, Brown and Hudgens argued, until Hudgens sheathed his
sword and walked away, with another of his friends, Forrest Mull.
Id. at 1354-55 (footnotes omitted).
We rejected Hudgens’ sufficiency challenge that “the victim was not
placed in fear of imminent serious bodily injury because Swope did not
testify that [Hudgens] attempted to strike him with the sword or that
[Hudgens] held the sword in a striking position[,]” because:
At trial, Swope testified that [Hudgens] threatened that he would
get Swope. Swope further indicated that [Hudgens] menaced
him with the sword by holding it within five to six inches away
from Swope's hand and by touching Swope's hand with the
sword. In addition, the victim testified that he was afraid that
[Hudgens] would stick him with the sword. Forrest Mull
corroborated this aspect of Swope's testimony and admitted that
Swope seemed scared or frightened of [Hudgens]. Swope's
observation of the events was also supported by the testimony
of Delores Mayer, who observed the fight as she was driving by
the arcade. Mayer stated that she saw “a person with a sword
or a saber aggressively approaching another man who was
backing off and stepping off the curb[.”] Mayer further testified
that from her vantage point, [Hudgens] appeared to be more
hostile and aggressive than the victim, who attempted to back
away from the fight.
Although [Hudgens] acknowledges this testimony, he cites
Commonwealth v. Fry, 341 Pa.Super. 333, 491 A.2d 843
(1985) for the proposition that a mere touch is insufficient to
sustain a conviction for simple assault. We find the type of
conduct at issue in Fry to be significantly different from
[Hudgens’] conduct in this case. In Fry, the defendant grabbed
a ten year old girl by putting his arms around her and lifting her
off of the ground. The child attempted to resist her attempted
abduction by kicking and screaming. Fortunately for the child,
her actions attracted the attention of safety patrol members who
ran to assist her. Upon seeing the patrol members, Fry released
the child. On appeal, this court found the evidence of simple
assault under § 2701(a)(3) to be insufficient because the
defendant did not threaten the child with physical harm, and did
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not strike the child or use any other physical means to subdue
the child. Fry, 341 Pa.Super. at 336–338, 491 A.2d at 845.
Unlike the defendant in Fry, [Hudgens] verbally
threatened that he would get the victim. Further, [Hudgens]
supported his ability to carry out the threat by wielding a sword
in close proximity to the victim's body. Also, several witnesses
to the incident testified that the victim was visibly frightened by
[Hudgens]. Because this type of conduct was absent in Fry, we
find it to be factually distinguishable from the situation presented
in this case. Therefore, after careful review of the testimony
presented at trial, we hold that there was ample evidence to
sustain [Hudgens’] conviction for simple assault.
Hudgens, 582 A.2d at 1356-57 (citations to the record omitted).
Here, Appellant contends that, unlike in Hudgens where Hudgens had
held his sword within inches of the victim, Appellant was comparatively
distant from Reed. Therefore, Appellant argues that there was not
legitimate “fear of imminent injury, rather than simply fear of future injury
generally.” Appellant’s Brief, at 37.
The Commonwealth concedes that Appellant was not as close to Reed
as Hudgens was to his victim. Commonwealth’s Brief, at 30. However, the
Commonwealth argues that, while proximity of assailant and victim
distinguishes the instant matter from Hudgens,
there is one thing that [A]ppellant in the instant matter did that
supported an intent to carry out her threats that was even more
menacing than the actions of the defendant in Hudgens: She
smashed the victim’s dog in the head with the very weapon that
she was using to threaten the victim. The Commonwealth would
respectfully submit that this action, in conjunction with the
threatening language and the fact that Reed was obviously
afraid, certainly allowed the jury to conclude that [A]ppellant
had attempted to put Reed in fear of imminent serious bodily
injury by physical menace.
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J-S29004-16
Id. at 30-31.
We agree with the Commonwealth that this fact had no comparable
analog in Hudgens. Moreover, Appellant was not so distant from Reed that
a fear of imminent harm was necessarily unreasonable. If Appellant was
close enough to hit Reed’s car with eggs and to bludgeon Reed’s dog, she
was close enough to put Reed in reasonable fear of imminent serious bodily
injury, absent irrefutable evidence of impossibility. Accordingly, we find that
Appellant’s distinguishing of Hudgens fails to support her sufficiency claim.
For the reasons set forth above, we conclude that Appellant’s
sufficiency claim lacks merit. When viewed in light most favorable to the
Commonwealth, the evidence adduced at trial was sufficient for the jury to
conclude that Appellant attempted, by physical menace, to put Reed in fear
of imminent serious bodily injury.
Judgment of sentence affirmed.
Judge Panella joins this memorandum.
Justice Fitzgerald files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2016
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